Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 302, Mars 1996

1. 355. In a communication dated 3 November 1994, Education International (EI) submitted a complaint of violations of freedom of association against the Government of Kenya.
2. 356. The Government sent its observations on this case in a communication dated 26 October 1995.
3. 357. Kenya has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

A. The complainant's allegations

1. 358. In its communication dated 3 November 1994, Education International asserts that, following a ban on unions in public universities since 1981, the application in 1992 for registration of the Universities Academic Staff Union (UASU) covering five state universities in Kenya was denied by the Registrar in a letter dated 24 November 1993. UASU members subsequently went on strike on 29 November to protest against the refusal to recognize their trade union and consequently their trade union rights. EI acknowledges that the strike has paralysed the academic programme in all public universities.
2. 359. EI alleges that, in an attempt to break the strike and to punish UASU members, the vice-chancellors at the universities stopped payment of the salaries of some UASU members and officials. EI also provides the following list of 21 UASU members who have been dismissed from their positions at the universities since the strike was undertaken: Dr. Korwa Adar; Mr. Airo Akodhe; Dr. Kilemi Mwirira; Dr. Omari Onyango; Mr. Odhiambo Nyaduw; Dr. Thomas Afullo; Mr. Gathogo Thou Gathogo; Mr. Karoki Githininji; Mr. Wanjala Khisa; Mr. Churchill Kibisu; Mr. Kibiwott Kurgat; Mr. Eric Makokha; Dr. Charles Maranga; Mr. Francis Muchoki; Mr. James Mwajiwe; Mr. Njorge Mwema; Dr. Kilemi Mwiria; Mr. Charles Namachanga; Mr. Odek Ogunde; Dr. Richard Onyango; and Mr. Francis Opar.
3. 360. EI states that the reasons given for the dismissals at Egerton University were cited as gross misconduct, insubordination and neglect of duty. Moi University cites absence from duty. The offences warranting dismissal cited by Nairobi University are the following: stopping lectures, undermining academic programmes, infringement of student rights, scandalous behaviour, issuing press releases and circulars to incite lecturers to stop work and addressing a meeting on campus. Neither the work nor the behaviour of the lecturers dismissed had been the subject of criticism before the strike.
4. 361. Furthermore, Dr. Korwa Adar has been charged with incitement for explaining to students the reason for the strike.
5. 362. Seven union members and UASU challenged the decision of the Registrar of Trade Unions and the Attorney General in court, but their right to do so was denied.
6. 363. EI concludes that the refusal to recognize UASU as a union, the withdrawal of salaries and the dismissal of some UASU officials and members constitute undeniable violations of Conventions Nos. 87 and 98.

B. The Government's reply

1. 364. In its communication dated 26 October 1995, the Government affirms that it has always ensured such basic rights as freedom of association and protection of the right to organize.
2. 365. According to the Government, trade unions are registered and organized on broadly defined industrial lines, voluntarily agreed upon by the three social partners in the tripartite Industrial Relations Charter of 1962, updated in 1980. All management, supervisory and confidential staff are specifically excluded from joining trade unions under the Charter.
3. 366. Members of the teaching profession in primary and tertiary institutions are represented by the largest single trade union in the country, the Kenya National Union of Teachers (KNUT), with approximately 240,000 members. The KNUT is the only trade union in the teaching profession which has been agreed to by the three parties in the Industrial Relations Charter.
4. 367. The Government states that it considers university professors and lecturers to be in the category of management employees. In addition, the various Acts of Parliament establishing the five public universities of Kenya contain specific provisions governing the contract of employment of lecturers and professors. They therefore do not need trade unions to articulate their terms and conditions of service with university authorities. Furthermore, professionals, like university professors and lecturers, among others, have always belonged to professional bodies and associations to protect and advance their professional interests.
5. 368. The Government recalls that registration is a matter for the Registrar of Trade Unions and a refusal can be appealed under the law. The five universities as employers have nothing to do with the registration of trade unions. It therefore denounces the fact that some university lecturers and professors decided to participate in an illegal strike (i.e., without giving the stipulated 21 days' statutory notice) to protest the Registrar's refusal to register UASU.
6. 369. The Government adds that teaching services in Kenya are classified as "essential services" under the Trade Disputes Act, Cap. 234 and cannot therefore be interrupted without giving the required statutory notice. Furthermore, teachers enjoy a specific status because of their special responsibility of imparting know-how and knowledge to the nation's youth upon whose future the nation depends. A strike by teachers actually hurts not the employer, but rather the students and their parents.
7. 370. On another line of reasoning, the Government states that all the academic staff in Kenya are employed under individual contracts of employment and, until registered as a trade union, they cannot act collectively as such. Thus, the so-called "strike" which began on 29 November 1993 was actually a boycott, or even a breach of contract by the individual professors and lecturers. Only when they are in a recognized trade union, acting collectively, can they call a strike under the existing Kenyan laws.
8. 371. Two appeals of the refusal to register were brought to the High Court of Kenya for review; one constitutional and the other under the provisions of the Trade Union Act. The former was dismissed by the High Court because, among other reasons, the appeal for review of refusal to register provided for under the Trade Union Act had already been brought and was and still is pending.
9. 372. The Government considers that the university professors and lecturers should have been working while awaiting the final decision of the Court. Instead some of the lecturers frustrated their own contracts of employment by refusing to continue working. According to the Government, this helps to explain why the university authorities had to dismiss some of the lecturers who refused to resume their duties for dubious and unacceptable flimsy reasons.
10. 373. Finally, according to the Government, the earlier strike problem by all of the five public universities has long been resolved and nearly all university professors and lecturers have returned to their jobs and opted to form and join professional associations to protect and advance their occupational interests. The Government states that there now exists no outstanding dispute between the various academic staff and the university authorities.

C. The Committee's conclusions

1. 374. The Committee notes that the allegations in this case refer to the refusal to register the Universities Academic Staff Union (UASU), the subsequent blocking of the payment of salaries and dismissal of some university professors and lecturers, and the charges filed against one person for incitement to strike.
2. 375. The Committee would recall that it has already been called upon to examine the Registrar's refusal to register the UASU in Case No. 1792 (see 295th Report, paras. 519-547). At that time, the Committee pointed out that the right to form and to join organizations for the promotion and defence of workers' interests, without previous authorization, was a fundamental right to be enjoyed by all workers without distinction whatsoever, including teachers. Noting that the question was sub judice, the Committee urged the Government to ensure that this principle be respected and to take the necessary measures to ensure the registration of the UASU.
3. 376. The Committee notes from the Government's reply that trade unions are registered and organized on broadly defined industrial lines, voluntarily agreed upon by the three social partners in the tripartite Industrial Relations Charter which excludes all management, supervisory and confidential staff from joining trade unions and provides for one union (the KNUT) to represent members of the teaching profession in primary and tertiary institutions.
4. 377. The Committee also notes that the Government considers university professors and lecturers to be in the category of management employees excluded from forming trade unions under the Charter, but that these professionals have always belonged to professional bodies and associations to protect and advance their professional interests. The Committee must once again recall the importance it places upon the principle that all workers, without distinction whatsoever, shall have the right to form and join the organization of their own choosing, without previous authorization. As stated in its previous examination of the question of the registration of the UASU, this right shall also be ensured to university teachers. The limitation of the representation of teachers' interests to one single union, even if done so with the agreement of the social partners involved in the drafting of the Industrial Relations Charter, is contrary to this principle.
5. 378. As concerns the argument that university professors and lecturers are considered as management employees excluded from forming trade unions, the Committee would recall that all workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization.
6. 379. While noting the Government's statement that nearly all university professors and lecturers have returned to their jobs and opted to form and join professional associations to protect and advance their occupational interests, the Committee cannot but deplore that measures have not been taken to ensure the registration of UASU as requested in its examination of Case No. 1792. It urges the Government to take the necessary measures without delay to enable university professors and lecturers to form and join organizations of their own choosing, including through the registration of UASU. The Committee requests the Government to keep it informed in this regard.
7. 380. As concerns the appeal of the refusal to register the union which is still pending, the Committee observes that this application has been before the High Court for over two years now and no judgement has yet been rendered. The Committee is of the opinion that legal proceedings concerning the appeal of a decision to refuse trade union registration should be concluded expeditiously as justice delayed is justice denied. It expects that the High Court's judgement in this matter will be rendered in the near future and requests the Government to transmit a copy of the said judgement as soon as it is handed down.
8. 381. As concerns the dismissal of 21 professors and lecturers from the different public universities and the withholding of certain salaries, while noting the Government's argument that the professors were acting individually and had thus breached their contracts, the Committee must recall its previous examination of this matter in which it pointed out that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests and that the fact that a strike is called for recognition of a union is, in the Committee's view, a legitimate interest which may be defended by workers and their organizations. (See 295th Report, para. 539.) One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. (See Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 724.)
9. 382. As concerns the Government's statement that university professors and lecturers fall under the classification of essential services (as defined by the Trade Disputes Act), the Committee must recall that teachers do not fall within the definition of essential services in the strict sense of the term. As concerns generally the provision requiring 21 days' statutory notice of any work interruption, even if the Committee were to consider this to be compatible with its principles, the Committee considers, in any event, that the failure to provide notice in the present case does not in any way justify the subsequent acts of anti-union discrimination such as dismissal and non-payment of salaries.
10. 383. The Committee notes that the Government, in its reply, does not challenge that the dismissals were due to participation in strike action and states that the professors' refusal to continue working helps to explain the reason for the dismissals. Noting that the Government has said that nearly all those dismissed have returned to their jobs, the Committee requests it to take the necessary measures to ensure that those university professors and lecturers dismissed for carrying out legitimate trade union activity who have not yet returned are immediately reinstated in their posts and that any wages due are paid (the non-payment of periods of work interrupted for strike action being permissible). The Government is requested to keep the Committee informed in this regard.
11. 384. Finally, the Committee regrets that the Government has not provided any information with respect to the allegations that charges of incitement were made against Dr. Korwa Adar for explaining the reason for the strike to students. In this regard, the Committee recalls that freedom of opinion and expression, along with other fundamental civil liberties, is essential for the normal exercise of trade union rights. (See 1970 ILC resolution concerning trade union rights and their relation to civil liberties.) The Committee therefore expects that any charges made against Dr. Adar in violation of his fundamental right to free speech will be dropped and requests the Government to keep it informed in this regard.